There's two mysteries I'm getting at here. The first concerns the Fitzgerald press conference, press release and the Libby indictment. The second concerns a mystery surrounding the Fitz web site.
MYSTERY #1: What's missing from Fitzgerald's press conference, press release and Libby's Indictment?
HINT #1: It's a word that appeared in Fitzgerald's 75 page brief before the US Court Of Appeals.
Have another look at that 75 page brief. There's no date on it, but that's not the answer, just a clue. The first page tells us that the oral argument was scheduled for December 8, 2004. The final page contains an affirmation with the statement:
"This brief complies with the type-volume limitation of Fed.R.App.P. 32(a)(7)(B), as modified by this Court’s Order of October 19, 2004..."
The brief would probably have been due 30-45 days before oral argument. It was probably delivered to the court no later than Nov. 8th, although my best guess is that this brief was delivered to the Court in the third or fourth week of October 2004. And it was probably written in the first two weeks of October, 2004.
HINT #2: The word concerns an alleged motive for a crime.
On page 3 of the brief, the "Statement Of Facts" contains the following:
The Special Counsel’s investigation concerns alleged leaks of purportedly classified information by one or more government officials to reporters in apparent retaliation for a former government official’s exercise of his First Amendment right to publicly criticize the government.
Page 45 of Fitzgerald's brief then contains the following:
While Cooper and Time are being asked to identify a confidential source, given the nature of the relevant communications – namely, the alleged disclosure of sensitive government information for the purpose of political advantage or retaliation against a critic of the administration –
Page 48 of the brief states:
Moreover, appellants’ specific claim that requiring the disclosure of sources would impinge on reporters’ ability to uncover government misconduct rings hollow, given that the investigation in this case involves information that may have been released by a government official for political or retaliatory reasons, rather than the release of information in the nature of “whistleblowing.”
Page 48 also states:
Accordingly, public policy weighs heavily in favor of, rather than against, “chilling” such retaliatory disclosures by public officials.
Have you solved the mystery yet?
ANSWER: The missing word = RETALIATION
Based upon the 75 page brief filed by Fitzgerald with the Court of Appeals around October 2004, it appears Fitz -- at that moment in time -- had the motive for the crimes sorted out to his own satisfaction.
According to the brief, "...the alleged disclosure of sensitive government information for the purpose of political advantage or retaliation against a critic of the administration..."
Let's now cut to what I believe is the most important segment of Fitzgerald's October 28, 2005 press conference:
QUESTION: The indictment describes Lewis Libby giving classified information concerning the identify of a CIA agent to some individuals who were not eligible to receive that information. Can you explain why that does not, in and of itself, constitute a crime?
FITZGERALD: That's a good question. And I think, knowing that he gave the information to someone who was outside the government, not entitled to receive it, and knowing that the information was classified, is not enough.
FITZGERALD: You need to know at the time that he transmitted the information, he appreciated that it was classified information, that he knew it or acted, in certain statutes, with recklessness.
There's a whole lot of information spilling out here and I haven't seen it analyzed properly yet, so let me take my shot at deconstructing Fitzgerald's context.
I'm going to focus on 18 USC 793(d) of the Espionage Act:
(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing...or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates...the same to any person not entitled to receive it...Shall be fined under this title or imprisoned not more than ten years, or both. (All emphasis added by CS.)
There's three elements of this statute Fitz needs to prove as to Libby:
1 - Information relating to the national defense was in Libby's possession
2 - Libby Willfully communicated it to someone not entitled to receive it
3 - Libby had reason to believe the information could be used to the injury of the United States or to the advantage of any
I must say -- after thinking about this hard for almost a week -- I couldn't understand why Fitz didn't indict Libby for violating 18 USC 793(d). In response to the first question quoted above, Fitz acknowledged that the first two elements had been established. Libby did communicate classified information to someone not entitled to receive it. But it also "appears" -- and I stress the word "appears" for clarity -- that Fitz doesn't think he's got element three locked down.
My initial gut reaction to this was:
"I disagree with Fitz. I totally disagree. All of the elements of 18 USC 793(d) have been established."
But this Fitzgerald, he's a cagy fellow. After looking this over and over, I'm certain Fitz has Libby on 18 USC 793(d), and I'm certain Fitz knows he's got Libby locked down on it.
You can quote me on that.
QUESTION: Hold on there CS, didn't Fitz say "it's not enough"?
This is true. Fitz did say that, and he meant it. But he wasn't answering a direct question about 18 USC 793(d). He was answering a blanket question concerning why he didn't charge Libby with any other crimes.
QUESTION: If he's got Libby locked down for violating 793(d), why not charge him?
Now that is the million dollar question for today. Before I answer that question let me first explain why Fitz has Libby locked down for violating 793(d) of the Espionage Act.
Fitz stated that the info was classified. He didn't state that Libby knew it was classified. Yet, 793(d) does not require -- as an element of the statute -- that the information be "classified". 793(d) only requires that the information be "related to the national defense". Fitzgerald made it clear -- in the press conference, press release, and the indictment -- that Plame's cover -- the cover of a CIA officer -- was certainly related to the national defense.
From the October 28 press conference:
FITZGERALD: The fact that she was a CIA officer was not well- known, for her protection or for the benefit of all us. It's important that a CIA officer's identity be protected, that it be protected not just for the officer, but for the nation's security.
From the October 28 press release:
Disclosure of classified information about an individual’s employment by the CIA has the potential to damage the national security in ways that range from preventing that individual’s future use in a covert capacity, to compromising intelligence-gathering methods and operations, and endangering the safety of CIA employees and those who deal with them, the indictment states.
From the Libby indictment...
Disclosure of the fact that such individuals were employed by the CIA had the potential to damage the national security in ways that ranged from preventing the future use of those individuals in a covert capacity, to compromising intelligence-gathering methods and operations, and endangering the safety of CIA employees and those who dealt with them.
In three separate instances, Fitzgerald tells us that Plame's identity as a CIA officer was related to the national defense. 793(d) doesn't give a rats ass about whether this particular information was classified, and 793(d) certainly doesn't care whether Libby knew it was classified. Just read the statute:
d) Whoever, lawfully having possession of...information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates...the same to any person not entitled to receive it...Shall be fined under this title or imprisoned not more than ten years, or both.
- Libby had possession of information relating to the national defense
- Libby communicated that information to a reporter not entitled to receive it
- Libby had reason to believe the information could be used to the injury of the United States
Section 18 USC 794(a) of the Espionage Act uses a much higher hurdle in that the leaker must have reason to believe that the national defense information he is releasing "is to be used" to harm the United States. And for that kind of behavior, the maximum sentence is life in prison or death.
But this lesser standard -- that the national defense information "could be used" against the US -- only carries a ten year maximum sentence. That's because the statute requires a much less stringent criminal intent. If a CIA officer's identity is related to the national defense, then the exposure of her identity -- beyond a reasonable doubt -- "could" be used to harm the US or, in the alternative, "could" be used to the advantage of a foreign nation. If that were not true, then there would be no reason to ever provide cover for CIA officers. This word -- COULD -- may just be the subject of another "depends what the meaning of 'is' is"...defense.
We shall see.
The statute doesn't require Fitz to prove that the info was classified -- or that if it was classified -- Libby knew it to be classified. The statute doesn't require that.
The statute only requires that Libby had "reason to believe" the information "could be used to the injury of the United States or to the advantage of any foreign nation." If we are to believe Fitzgerald -- that the exposure of a CIA officer's identity "had the potential to damage the United States" -- how then is this final element of the statute not covered by Libby's disclosure.
For a jury to find Libby "not guilty" of violating 18 USC 793(d), that jury must find that Libby had no reason to believe that exposing the name of a CIA officer to members of the press "could" be used to injure the US or to give advantage to any foreign nation.
LIBBY is toast under 18 USC 793(d). Fitz has him locked down with no escape hatch other than a pardon.
And if Libby is rightfully impeached in the House and convicted in the Senate, it's possible the pardon may be voided. For more on this new Constitutional discovery, please see my pardon report.
So, isn't Fitz speaking out of both sides of his mouth when he tells us three times -- press conference, press release, indictment -- that the information "had the potential to damage the national security" while at the same time he tells us that he doesn't have "enough"?
That really depends on what Fitzgerald was actually telling us.
Was he telling us that he didn't have enough to charge Libby with other crimes, i.e. 793(d)?
Or was Fitz telling us that he didn't have "enough" to determine which of these other crimes he should charge?
Let's pick up where the prior Fitz press conference quote ends:
And that is sort of what gets back to my point. In trying to figure that out, you need to know what the truth is.
So our allegation is in trying to drill down and find out exactly what we got here, if we received false information, that process is frustrated...
FITZGERALD: I think -- but I will say this: The whole point here is that we're going to make fine distinctions and make sure that before we charge someone with a knowing, intentional crime, we want to focus on why they did it, what they knew and what they appreciated; we need to know the truth about what they said and what they knew
QUESTION: Does that mean you don't feel that you know the truth about whether he intentionally did this and he knew and appreciated it? Or does that mean you are exercising your prosecutorial discretion and being conservative?
FITZGERALD: Well, I don't want to -- look, a person is charged with a crime, they are presumed innocent, and I haven't charged him with any other crime.
And all I'm saying is the harm and the obstruction crime is it shields us from knowing the full truth.
I won't go beyond that.
Fitz is choosing his words carefully, "drill down", "fine distinctions", "intentional crime".
None of this bodes well for Mr. Libby or anybody else involved with the conspiracy.
Fitz appears to be examining 18 USC 794 of the Espionage Act. This is much more serious than 793. I don't think Fitz will use 794(b) because of the technical issues involved with proving the "time of war" element of the statute. 794(b) is basically the same as 793(d) in that both only require the perp to leak info which could be used to harm the US. But when the country is in "time of war", the punishment goes up from a ten year maximum sentence -- in 793(d) -- to life in prison or the death sentence in 794(b).
The defense to 794(b) is to dispute we were in "time of war". The defendants will argue that the "time of war" element for this statute is defined by the intent of the framers of the statute, and back in 1917 you still needed a Constitutional declaration of war by Congress for the statute to take effect. I don't know if the defense would fly with a jury, but it's very possible the prosecution could get hung up on this technical issue and it would almost certainly go to an appeal.
Looks like Fitz might avoid using 794(b), but 794(a) is certainly in play.
a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates...information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life...
While Fitz has Libby "drilled down" under 793(d), he's still not sure of Libby's state of mind, his intentions. And "intent" determines whether Fitz can use 794(a).
"...we want to focus on why they did it, what they knew and what they appreciated; we need to know the truth about what they said and what they knew..."
Fitzgerald is a very serious individual. This is not your garden variety prosecutor. Like the man said, this isn't over. If we were using a baseball analogy, I'd say the national anthem is just about to be played. We're not even in the first inning yet. The dust Libby and others threw at this umpire has finally settled and Fitz is starting to see clearly.
Everybody involved with this conspiracy is in deep shit. This thing is going to be exposed from the top to the bottom. I've noticed a few developments which bolster that conclusion. And this leads me back to the mysteries hinted at by my headline.
Fitzgerald isn't buying the "Joe Wilson was bitchslapped" theory of motive anymore.
SOMETHING CHANGED FITZGERALD'S MIND CONCERNING MOTIVE JUST AFTER HIS OFFICE SUBMITTED THE 75 PAGE BRIEF NEAR OCTOBER 2004.
The brief contains the "retaliation" concept, but that brief is the very last time Fitzgerald uses the words -- "retaliation" or "retaliatory" -- in this investigation. The press conference, press release and indictment all steer very clear of alleging motive -- something Fitz was quite comfortable doing -- in the 75 page brief to the Court of Appeals.
The time line here is rather interesting because we don't know the exact date the brief was written and thereafter submitted to the court. The reason this is important leads us to mystery number 2.
MYSTERY #2: What's missing from the Special Prosecutor's website?
On October 28, Justin Raimondo published an interesting article for antiwar.com which contains the following quote form District Court Judge Hogan:
The ex parte affidavit establishes that the government's focus has shifted as it has acquired additional information during the course of the investigation. Special Counsel now needs to pursue different avenues in order to complete its investigation. … The subpoenas were not issued in an attempt to harass the [reporters], but rather stem from legitimate needs due to an unanticipated shift in the grand jury's investigation.
I had never seen that quote before, and I was really angry that I missed it. So I went to the Special Prosecutor's website and had another look at Judge Hogan's decisions. But I couldn't find that quote there. So I went back to Raimondo's column and followed the links attached to that quote. None of the links led to an actual court document. The two links supplied by Raimondo led to other blogs. But those blogs didn't lead to an actual court decision.
I Googled the quote and found the following link to an official .gov document...
...but the damn link wouldn't work, and there was no "cache" option for this particular Google entry. I then trolled around the web desperately groping for this District Court opinion. No luck.
I returned to the broken link once more. It was a .pdf file. I then noticed there was a "convert to html" button, gave that a shot and voila!, up came Judge Hogan's official opinion. This happened on October 29. And today, the original link is working again. But I'm fairly certain the link wasn't working when Raimondo published his October 28 column. Surely, he must have searched for the official document as I had done, concluded it was not available, and published his report using only the blog references to it. And I imagine -- not knowing Raimondo personally -- that he wasn't happy about not having the real thing.
Now, almost a week after Raimondo published that report, the official .gov document is online again.
But it's still not been uploaded to the Special Counsel's website. What gives? Let's see what that opinion says:
On September 13, 2004, Special Counsel issued a second set of subpoenas upon Mr. Cooper and Time....
Cooper and Time argue that because the second set of subpoenas seek the same information requested in the original subpoenas, enforcing these new subpoenas would be unreasonable and/or oppressive. Specifically, Movants take issue with the fact that Special Counsel voluntarily limited the previous subpoenas to information concerning one identified government official, yet he now looks to gather information that he previously agreed not to seek. Such an action, Cooper and Time argue, is unreasonable and oppressive. This Court disagrees.
In his ex parte affidavit, Special Counsel outlines in great detail the developments in this case and the investigation as a whole. The ex parte affidavit establishes that the government’s focus has shifted as it has acquired additional information during the course of the investigation. Special Counsel now needs to pursue different avenues in order to complete its investigation. Through the ex parte affidavit, the Court has determined that the subpoenas were not issued in an attempt to harass the movants, but rather stem from legitimate needs due to an unanticipated shift in the grand jury’s investigation.
"... the government's focus has shifted"
"...an unanticipated shift in the grand jury's investigation..."
Where have those quotes been hiding?
1. Why isn't this official decision of the District Court included at the Special Counsel's website?
My best guess is that Fitz may not have wanted certain people to focus on the inflammatory information contained in that statement. Out of sight out of mind, right? But once Raimondo's column zeroed in on this decision, it must have become obvious that people would be hunting for the official court document. And now it's back online. I don't really know what this means, if anything, but the document sure led this blogger on an interesting journey. The second question, and by far the more relevant one is:
2. Where has this "unanticipated shift" taken Fitzgerald?
When you examine the shift in Fitzgerald's publications and official utterances on the topic of motivation, it becomes reasonable to believe that Fitzgerald is not buying the argument/spin that this outing of a CIA officer was done with purely political or retaliatory motivations. Something -- or someone -- changed Fitzgerald's mind around October 2004.
I think this is a mind-blowing development because the 75 page brief to the Court of Appeals makes no less than four references to the "political or retaliatory" motive, but that brief is the very last time Fitz published such language. Now reexamine the words Fitz chose in the press conference -- words that clearly indicate he's not been able to determine "why they did it" -- and you come away with an "ah ha" moment.
Fitz is just walking out to the mound, people. The first inning hasn't even started.
Nothing, and I mean nothing at all, can be found in the press conference, press release or indictment which even remotely suggests that Plame and Wilson are innocent victims in this affair. Fitz certainly doesn't suggest that they were co-conspirators either. But his published language has changed drastically as far as it pertains to the motive for these crimes.
When Fitz submitted his brief to the Court of Appeals around the time of late October 2004, he was apparently comfortable repeating the common perception that the motive was "political gain" or "retaliation" of a critic. But that was before he was able to get some of the dirt out of his eyes. Seeing things more clearly now, he realizes -- and in fact has unequivocally stated -- that he does not know the motive -- "why they did it" was the exact words he used.
Please notice that Judge Hogan's "unanticipated shift" memorandum is a direct result of Cooper's objection to Fitzgerald's second set of subpoenas. Fitz had finally got some of the shit out of his eyes when Cooper was forced to answer the initial questions and this clarity led him in another direction.
Judge Hogan's decision comes down on November 10, 2004. By this time Fitz would have submitted the 75 page brief containing the original "political or retaliation" motives probably a week or two prior to Hogan's Nov. 10 decision.
Mark October 2004 on your calendar as the time Fitz started to see the possibility of a much larger and more intricate conspiracy involving more sinister and pre-meditated intentions. I think that's a fair assessment when you carefully examine everything that Fitz has said since submitting that 75 page brief. In case you've been sleeping, he's not mentioning the word "retaliation" any longer.
But the gatekeepers of the left continue to focus on the "small picture" insisting that these dangerous crimes were committed as retaliation against a whistleblower/hero. Y'all better get educated soon. Fitzgerald has signaled that he's not satisfied this investigation has uncovered the genuine motive. And he's also signaled through his press conference that he will not rest until he can look us in the eye and tell us he did everything he could to solve the riddle of this crime.
Fitzgerald is "drilling it down".
Rats are cornered. You know what rats do when they're cornered. He's got them cornered. I feel it. I believe it. I am impressed. Those involved with this conspiracy are going to figure it out soon. They are the Moriarty to Fitz as Sherlock Holmes. But Moriarty was no idiot. I don't think they will sit back and wait for the thing to play out relying on the pardon. That's a risky strategy.
Given time, Fitzgerald will convict every one of them eventually. His eyes are wide open and he's the better man. And they know it. That's the scary part. They know he's going to beat them.
Pray for the prosecutor.
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